Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 17 May 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
John Bram hall (England), member
S tijn Boey kens (Belgium), member
Philippe Diallo (France), member
Jérôm e Perlem uter (France), member
on the matter between the player,
Play er A, Country B
as Claimant / Counter-Respondent
and the club,
Club C, Country D
as Respondent / Counter-Claimant
and the club,
Club E, Country B
as Intervening Party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 18 December 2015, the Player of Country B, Player A (hereinafter: Claimant /
Counter-Respondent), and the Club of Country D, Club C (hereinafter: Respondent
/ Counter-Claimant), concluded an employment contract (hereinafter: the contract),
valid as from 1 January 2016 until 30 June 2018.
2.
Pursuant to clause 22 of the contract, the Claimant / Counter-Respondent was
entitled to receive the following amounts:
- 2015-16 season: EUR 24,000 gross paid in monthly instalments of EUR 4,000
gross;
- 2016-17 season: EUR 48,000 gross paid in monthly instalments of EUR 4,000
gross;
- 2017-18 season: EUR 60,000 gross paid in monthly instalments of EUR 5,000
gross.
3.
In addition, clause 24 of the contract provides for the following bonuses:
a. “for participation of [the Claimant / Counter-Respondent] in a winning match
of the first team in Professional Football League of Country D in the total of
at above 45 minutes [the Claimant / Counter-Respondent] will receive 1.500
EUR (…) gross.
b. for participation of [the Claimant / Counter-Respondent] in a winning match
of the first team in Professional Football League of Country D in the total of
45 minutes or less but more than 15 minutes [the Claimant / CounterRespondent] will receive 750 EUR (…) gross.
c. for participation of [the Claimant / Counter-Respondent] in a winning match
of the first team in Professional Football League of Country D in the total less
than 15 minutes [the Claimant / Counter-Respondent] will receive 150 EUR (…)
gross.
d. for participation of [the Claimant / Counter-Respondent] in a draw match of
the first team in Professional Football League of Country D in the total of at
above 45 minutes [the Claimant / Counter-Respondent] will receive 500 EUR
(…) gross.
e. for participation of [the Claimant / Counter-Respondent] in a draw match of
the first team in Professional Football League of Country D in the total of 45
minutes or less but more that 15 minutes [the Claimant / Counter-Respondent]
will receive 250 EUR (…) gross.
f. for participation of [the Claimant / Counter-Respondent] in a draw match of
the first team in Professional Football League of Country D in the total less
than 15 minutes [the Claimant / Counter-Respondent] will receive 50 EUR (…)
gross.”
Player A, Country B / Club C, Country D / Club Club E, Country B
2/18
4.
In this respect, clause 24 further specifies that the bonuses “will be paid after the
end of the season before 15th of July each year of contract”.
5.
Clause 28 of the contract enshrines: “Parties mutually agree “release clause” of [the
Claimant / Counter-Respondent] in amount of EUR 300,000 net until 31 December
2016 and EUR 250,000 net after 31 December 2016”.
6.
Clause 29 of the contract provides that “[i]n case of a drop to a lower class, the
Parties undertake to renegotiate the terms of this contract. If the parties fail to
agree on the new contract provisions the legal relationship between the parties
expires”.
7.
Furthermore, clause 33 and 34 of the contract stipulate the following:
33. “In respect of any disputes that can occur between the parties in relation to
the present Contract, including in particular concerning validity, existence or
termination of the Contract, the proper bodies of the Football Association of
Country D will decide: acting in accordance with separate regulations.”
34. “All and any financial disputes resulting from this Contract will be subject to
decision by the Football Arbitration Court of the Football Association of
Country D.”
8.
According to the Claimant / Counter-Respondent, the contract had expired on 18
July 2016 by virtue of Clause 29 of the contract.
9.
Pursuant to the information contained in the Transfer Matching System (TMS), the
Club of Country B, Club E (hereinafter: Intervening Party) requested an ITC for the
Claimant / Counter-Respondent’s transfer on 27 July 2016, which was subsequently
rejected by the Football Association of Country Don 4 August 2016. Following a
decision by FIFA, the Claimant / Counter-Respondent was provisionally registered
with the Intervening Party on 25 August 2016 as a free agent.
10.
By correspondence dated 14 September 2016, the Claimant / Counter-Respondent
put the Respondent / Counter-Claimant in default of payment of EUR 5,250 setting
a time limit expiring on 24 September 2016 in order to remedy the default.
11.
On 10 October 2016, with amendments made on 6 December 2016, the Claimant /
Counter-Respondent lodged a claim against the Respondent / Counter-Claimant in
front of FIFA. In his claim, the Claimant / Counter-Respondent requested inter alia
that FIFA:
a. Declare that the Respondent / Counter-Claimant pays the Claimant / CounterRespondent overdue payables in the amount of EUR 5,250 plus 5% p.a. on
said amount as from 15 July 2016 until the date of effective payment;
Player A, Country B / Club C, Country D / Club Club E, Country B
3/18
b. Declare that the contract expired by virtue of Clause 29 of the contract;
c. Conclude that the Respondent / Counter-Claimant is liable for the breach of
the employment contract and, therefore, is liable to pay compensation to the
Claimant / Counter-Respondent;
d. Conclude that the Respondent / Counter-Claimant is liable to pay EUR 300,000
to the Claimant / Counter-Respondent as a compensation for the breach of
the contract as submitted under Clause 28 of the contract;
e. Alternatively, conclude that the Respondent / Counter-Claimant is liable to
compensate the Claimant / Counter-Respondent the sum of EUR 500,
“alternative submission on compensatory damages, suffered by the [the
Claimant / Counter-Respondent] – financial damages”;
f. “The amount equal to 10% of the value of the employment contract (…) –
Compensation – Specificity of Sport.”
12.
According to the Claimant / Counter-Respondent, the Respondent / CounterClaimant failed to pay him EUR 5,250 related to bonuses for participating in certain
matches pursuant to Clause 24 of the contract.
13.
The Claimant / Counter-Respondent further highlighted that Clause 29 is valid,
binding and reciprocal. Under this Clause, as per the Claimant / CounterRespondent, once the Respondent / Counter-Claimant is relegated, the Respondent
/ Counter-Claimant and the Claimant / Counter-Respondent renegotiate the terms
of a new contract. If the parties do not agree on a new contract, then the contract
expires.
14.
In continuation, the Claimant / Counter-Respondent explained that after the
2015/2016 season, the Respondent / Counter-Claimant relegated “from the
Professional Football League of Country D to Professional Football League of
Country G”.
15.
The Claimant / Counter-Respondent argued that on 11 July 2016 he asked the
Respondent / Counter-Claimant via email for a renegotiation of the contract under
Clause 29. On this same day, the Respondent / Counter-Claimant’s president replied
via email that Clause 29 is invalid under the rules of the Football Association of
Country D and therefore have no legal effect. The Respondent / Counter-Claimant
further told the Claimant / Counter-Respondent that it “is entitled to request to
Football Association of Country D for termination of Contract due to fault of [the
Claimant / Counter-Respondent] which has not participated in training of [the
Respondent / Counter-Claimant] since 20 June 2016. In reply, dated 12 July 2016,
the Claimant / Counter-Respondent admitted that the contract was still valid, but
that he had not returned to Country D due to illness.
Player A, Country B / Club C, Country D / Club Club E, Country B
4/18
16.
In another email by the Claimant / Counter-Respondent, dated 13 July 2016, he
once again asked the Respondent / Counter-Claimant to clarify its position in light
of Clause 29 by 15 July 2016. However, on 15 July 2016, the Respondent / CounterClaimant’s legal counsel wrote back, holding that “Clause 29 is against the Football
Association of Country D rules and shall have no legal effect”. Moreover, the
Respondent / Counter-Claimant’s legal counsel told the Claimant / CounterRespondent that if he did not return by 18 July 2016, it will request the Football
Association of Country D to disqualify the Claimant / Counter-Respondent “for 12
months and penalty in amount of 100,000 in the Currency of Country D.
17.
Finally, on 18 July 2016, the Claimant / Counter-Respondent wrote to the
Respondent / Counter-Claimant that, since the Respondent / Counter-Claimant had
failed to present him a new contract proposal, he had “no other choice but to treat
the contract as expired in the light of Clause 29”.
18.
Taking account of the above, the Claimant / Counter-Respondent was of the
opinion that, by not respecting Clause 29, the Respondent / Counter-Claimant
breached the contract. As a result, the Claimant / Counter-Respondent is entitled to
compensation for breach of contract.
19.
In this sense, the Claimant / Counter-Respondent held that the release clause
enshrined in Clause 28 is a “liquidated damages clause”, and as such the
Respondent / Counter-Claimant is liable to pay EUR 300,000 to the Claimant /
Counter-Respondent as compensation, “as submitted under liquidated damages”.
20.
Alternatively, the Claimant / Counter-Respondent believes that he is entitled to EUR
500 as compensation from the Respondent / Counter-Claimant, because he
“suffered a loss of income, directly, caused by the breach of the employment
contract”. In particular, the Claimant / Counter-Respondent refered to a
“Statement” made by the Intervening Party, which stipulated that the Claimant /
Counter-Respondent would have earned EUR 500 in match bonuses had he been
able to participate in matches for the Intervening Party between 8 August 2016 and
20 August 2016.
21.
On 2 November 2016, the Respondent / Counter-Claimant submitted its reply with
regard to the Claim’s claim of 10 October 2016.
22.
In its reply, the Respondent / Counter-Claimant firstly challenged the competence
of FIFA to deal with the matter at hand, arguing that the Football Arbitration Court
of the Football Association of Country D (hereinafter: the NDRC of Country D) is
the competent body in accordance with clauses 33 and 34 of the contract.
Player A, Country B / Club C, Country D / Club Club E, Country B
5/18
23.
In this respect, the Respondent / Counter-Claimant alleged that the NDRC of
Country D constitutes an independent arbitration tribunal guaranteeing fair
proceedings and respecting the principle of equal representation of players and
clubs.
24.
In support of its assertion, the Respondent / Counter-Claimant submitted a copy of
the 2012 edition of the Statutes of the Football Association of Country D as well as
a copy of the 2012 edition of the Regulations of the Football Arbitration Court.
25.
In this regard, Article 47 of the Statutes of the Football Association of Country
D(“Competence”) is outlined as follows:
Ҥ2 РClaims for payments and petitions to establish and settle legal relationship
or rights can be submitted to the [NDRC of Country D].
§3 –Members of the Football Association of Country D, players, coaches,
instructors and players’ agents are obliged to include clauses providing for
exclusive competence of [NDRC of Country D] in civil law agreements
concerning disputes with regard to (…) football.
§4 – The clauses referred to §3 should include the following wording: “Disputes
which may result on the grounds of establishment, existence, validity,
execution and termination of agreements between members of Football
Association of Country D, players, coaches, instructors and players’ agents,
which may be subject to arbitration, arising in connection with (…) football,
shall be submitted by the parties for resolution to the [NDRC of Country D].”
26.
Furthermore, Article 57 (“Jurisdiction”) stipulates the following: “[The NDRC of
Country D] shall have jurisdiction in internal national disputes, i.e. disputes
between parties belonging to the [Football Association of Country D]. FIFA shall
have jurisdiction on international disputes, i.e. disputes between parties belonging
to different national football Associations and/or Confederations.”
27.
In the alternative, the Respondent / Counter-Claimant requested FIFA “to suspend
legal proceeding in case regarding the [Respondent] motion for termination
Contract and compensation for termination contract lodged to NDRC of Country D
which has decided that has no jurisdiction to resolve above mentioned case and
referred this case to the FIFA DRC”.
28.
In this context, the Respondent / Counter-Claimant held that during a meeting held
between the Respondent / Counter-Claimant and the Claimant / CounterRespondent on 4 July 2016, the Claimant / Counter-Respondent informed the
Respondent / Counter-Claimant that he “did not wish to play any longer for the
[Respondent] after relegation”. In response, the Respondent / Counter-Claimant
Player A, Country B / Club C, Country D / Club Club E, Country B
6/18
told the Claimant / Counter-Respondent that he still had a contract with the
Respondent / Counter-Claimant and that it was still interested in his services.
29.
According to the Respondent / Counter-Claimant, the Claimant / CounterRespondent failed to show up to the Respondent / Counter-Claimant after said
meeting. Consequently, on 19 July 2016, the Respondent / Counter-Claimant lodged
a claim in front of the NDRC of Country D, alleging termination of contract by the
Claimant / Counter-Respondent without just cause.
30.
On 23 August 2016, the NDRC of Country D declared itself incompetent to consider
the case and “decided” to submit the case to the FIFA DRC.
31.
Regarding FIFA’s competence and jurisdiction, the Claimant / Counter-Respondent
commented on 5 December 2016, that Clauses 33 and 34 of the contract do not
provide exclusive competence to the NDRC of Country D.
32.
On 13 February 2017, the Respondent / Counter-Claimant submitted a reply
regarding the Claimant / Counter-Respondent’s amended claim of 6 December
2016, as well as a counterclaim against the Claimant / Counter-Respondent. In its
reply and counterclaim, the Respondent / Counter-Claimant inter alia requested
that FIFA:
a. Declare itself incompetent to deal with the matter;
b. Alternatively, declare that the contract did not expire on 30 June 2016;
c. Dismiss all the claims of the Claimant / Counter-Respondent;
d. Conclude that Clause 28 is not a liquidated damages clause;
e. Conclude that the Claimant / Counter-Respondent terminated the contract
without just cause;
f. Conclude that the Claimant / Counter-Respondent is liable to pay the
Respondent / Counter-Claimant the amount of EUR 108,000, “which is equal
to [the Claimant / Counter-Respondent’s] salary until the end of the contract
(from 1 July 2016 until 30 June 2017)” as a compensation for termination of
the contract without just cause.
33.
As regards the competence of FIFA, the Respondent / Counter-Claimant referred to
the decision of 23 August 2016 by the NDRC of Country D (cf. I.30), but claimed that
it has never received a written justification of the decision. According to the
Respondent / Counter-Claimant, this decision has therefore never entered into
force. Moreover, the Respondent / Counter-Claimant claimed that it filed an appeal
on 21 November 2016 and that the case is still pending in front of the NDRC of
Country D.
Player A, Country B / Club C, Country D / Club Club E, Country B
7/18
34.
With regard to the alternative requests made by the Respondent / CounterClaimant, the Respondent / Counter-Claimant argued that the Claimant / CounterRespondent failed to show up at the Respondent / Counter-Claimant’s first training
session of the new season on 20 June 2016. As a result, the Respondent / CounterClaimant sent the Claimant / Counter-Respondent a letter on 20 June 2016
requesting him to comply with his contractual obligations. By means of this letter,
the Respondent / Counter-Claimant also warned the Claimant / CounterRespondent that he could be held liable under the disciplinary rules of the Football
Association of Country D. Nonetheless, as per the Respondent / Counter-Claimant,
the Claimant / Counter-Respondent only presented himself on 4 July 2016, 14 days
after the first training.
35.
The Respondent / Counter-Claimant reiterated that during the meeting of 4 July
2016, the Claimant / Counter-Respondent stated that he did not wish to play for
the Respondent / Counter-Claimant anymore. Moreover, according to the
Respondent / Counter-Claimant, the Claimant / Counter-Respondent explained that
he had begun treatment in Country B regarding an illness. In this regard, the
Respondent / Counter-Claimant stated that the Claimant / Counter-Respondent had
never informed it about his illness before the meeting.
36.
Even so, the Respondent / Counter-Claimant argued that during this meeting it
informed the Claimant / Counter-Respondent that the contract was still valid, that
he was contractually obliged to attend trainings, and that the Respondent /
Counter-Claimant was still interested in his services. Moreover, it requested the
Claimant / Counter-Respondent to provide documentation concerning the disease,
and told him that he could only leave for Country B following the decision of the
Respondent / Counter-Claimant’s doctor with regard to the medical
documentation. Nonetheless, as per the Respondent / Counter-Claimant, the
Claimant / Counter-Respondent left for Country B anyway without the Respondent
/ Counter-Claimant’s permission.
37.
According to the Respondent / Counter-Claimant, during the days 10 – 12 July 2016,
the Respondent / Counter-Claimant’s team manager and the Claimant / CounterRespondent had several conversations via SMS text messaging. In these
conversations, the Claimant / Counter-Respondent inter alia told the Respondent /
Counter-Claimant that he would return to the Respondent / Counter-Claimant, if it
pays for the plane ticket.
38.
The Respondent / Counter-Claimant further held that the team manager bought a
plane ticket for the Claimant / Counter-Respondent (Country B – Country D Country D) for 12 July 2016, at 18:30.
Player A, Country B / Club C, Country D / Club Club E, Country B
8/18
39.
However, notwithstanding the flight ticket, the Claimant / Counter-Respondent did
not show up at the Respondent / Counter-Claimant.
40.
In addition, the Respondent / Counter-Claimant referred to an SMS text message
exchange between the Respondent / Counter-Claimant’s president and the
Claimant / Counter-Respondent between 29 June 2016 and 28 July 2016. In
particular, on 21 July 2016 the Claimant / Counter-Respondent asked the president
via text message whether the Respondent / Counter-Claimant still wanted him, and
whether the Respondent / Counter-Claimant is “ready to pay the salary on time”.
On that same day, the Respondent / Counter-Claimant’s president replied in the
affirmative to both questions.
41.
The Respondent / Counter-Claimant claimed that subsequently, on 28 July 2016, the
Claimant / Counter-Respondent wrote to the Respondent / Counter-Claimant and
stated that he had bought a ticket to Country D for 31 July 2016. He wrote: “We
can meet and talk about everything. About my illness. So I can start to train. I want
you to [help] me with doctors. So it will be easier for me to play”.
42.
According to the Respondent / Counter-Claimant, these text messages written by
the Claimant / Counter-Respondent demonstrate that the Claimant / CounterRespondent was aware that the contract was still valid, and that the Claimant /
Counter-Respondent breached his contractual obligations by not appearing at
trainings.
43.
The Respondent / Counter-Claimant therefore concluded that it “suffered an
obvious damage, since it does not have [the Claimant / Counter-Respondent] whose
market value was EUR 300,000. [The Respondent / Counter-Claimant] signed a new
contract with another player [as a replacement] and incurred specific image loss
due to the fact that [the Claimant / Counter-Respondent] did not appear at
training”.
44.
On 13 March 2017, the Claimant / Counter-Respondent replied to the Respondent /
Counter-Claimant’s counterclaim. In his reply, he firstly held that he was only made
aware of the start of the pre-season on 20 June 2016, i.e. on the same day as the
first training. On such short notice, it was impossible for him to attend.
45.
In addition, the Claimant / Counter-Respondent held that the Respondent /
Counter-Claimant had been constantly in breach of its contractual obligations by
not paying him, and that he had put the Respondent / Counter-Claimant in default
by means of a letter dated 19 June 2016 and sent on 20 June 2016.
Player A, Country B / Club C, Country D / Club Club E, Country B
9/18
46.
The Claimant / Counter-Respondent then argued that only after the said default
letter did the Respondent / Counter-Claimant start paying him the outstanding
remuneration.
47.
Furthermore, the Claimant / Counter-Respondent claimed that he started suffering
from his illness between 20 June and 24 June 2016, and that “this could have been
triggered by the stress suffered by [the Claimant / Counter-Respondent] due to
persistent failure of [the Respondent / Counter-Claimant] to pay his remuneration
and the unreasonably short notice of the commencement of the pre-season of [the
Respondent / Counter-Claimant]”.
48.
Moreover, the Claimant / Counter-Respondent argued that, after a “brief absence”
of 14 days, during the meeting of 4 July 2016, he was granted permission verbally
to travel to Country B to cure his illness until 11 July 2016.
49.
The Claimant / Counter-Respondent was of the opinion that his absence between
12 July 2016 and 18 July 2016 is too short to be considered a fundamental breach
of the employment contract. In this light, the Claimant / Counter-Respondent
argued that during this time he constantly informed the Respondent / CounterClaimant that it was his intention to stay at the Respondent / Counter-Claimant.
50.
Lastly, the Claimant / Counter-Respondent reiterated that the contract had expired
on 18 July 2016, since the Respondent / Counter-Claimant failed to make a contract
proposal in light of Clause 29 of the contract.
51.
In its final comments dated 3 April 2017, the Respondent / Counter-Claimant once
again argued that the NDRC of Country D is competent to deal with the matter,
and that the Claimant / Counter-Respondent did not sufficiently prove otherwise.
52.
Moreover, the Respondent / Counter-Claimant stated that an absence of 14 days
cannot be considered “brief”, as the Claimant / Counter-Respondent claimed, and
that he only informed the Respondent / Counter-Claimant of his illness on 4 July
2016.
53.
The Respondent / Counter-Claimant further held that it did not owe the Claimant /
Counter-Respondent outstanding remuneration on 20 June 2016, and even if it
had, this would not allow the Claimant / Counter-Respondent to be absent for 14
days.
54.
Contrary to what the Claimant / Counter-Respondent stated, the Respondent /
Counter-Claimant held that during the meeting of 4 July 2016 it never gave the
Claimant / Counter-Respondent permission to travel back to Country B.
Player A, Country B / Club C, Country D / Club Club E, Country B
10/18
55.
Lastly, given that the Claimant / Counter-Respondent claimed that the contract
expired on 18 July 2016, the Respondent / Counter-Claimant wondered why the
Claimant / Counter-Respondent wrote to the Respondent / Counter-Claimant after
this date telling it that he wanted to come back.
56.
The Claimant / Counter-Respondent informed FIFA, submitting copies of the
relevant contract, that he signed an employment contract with the Intervening
Party on 26 July 2016, valid from the date of signature until 30 June 2017. The
Claimant / Counter-Respondent’s monthly salary at the Intervening Party amounted
to EUR 800 gross. The Claimant / Counter-Respondent further informed FIFA that
on 20 February 2018, he signed an employment contract with the Club of Country
B, Club H, valid from the date of signature until 20 November 2018. According to
the contract, the Claimant / Counter-Respondent is entitled to a monthly salary of
EUR 733.14 gross.
57.
Although the Intervening Party was invited to provide its comments to the present
matter, it did not submit any comments.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber, DRC or deciding body) analysed whether it was competent to deal with
the case at hand. In this respect, it took note that the present matter was submitted
to FIFA on 10 October 2016. Consequently, the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21 of
the 2015, 2017 and 2018 Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2018) the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
3.
Within this context, the Chamber understood that, in principle, it would be
competent to decide on the present litigation which involves a Player of Country B
and a Club of Country D regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent / Counter-Claimant
contested the competence of FIFA’s deciding bodies and considered that the matter
Player A, Country B / Club C, Country D / Club Club E, Country B
11/18
should have been submitted to the Football Arbitration Court of the Football
Association of Country D (hereinafter: NDRC of Country D) instead (cf. I.22).
5.
Taking into account the above, the Chamber emphasised that, in accordance with
art. 22 lit. b) of the 2018 edition of the Regulations, it is competent to deal with a
matter such as the one at hand, unless an independent arbitration tribunal,
guaranteeing fair proceedings and respecting the principle of equal representation
of players and clubs, has been established at national level within the framework
of the association and/or a collective bargaining agreement. With regard to the
standards to be imposed on an independent arbitration tribunal guaranteeing fair
proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December
2005. In this regard, the members of the Chamber further referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard
Regulations, which came into force on 1 January 2008.
6.
In relation to the above, the Chamber deemed it vital to outline that one of the
basic conditions that needs to be met in order to establish that another organ than
the DRC is competent to settle an employment-related dispute between a club and
a player of an international dimension is that the jurisdiction of the relevant
national arbitration tribunal or national court derives from a clear reference in the
employment contract.
7.
Therefore, while analysing whether it was competent to hear the present matter,
the Dispute Resolution Chamber considered that it should, first and foremost,
analyse whether the employment contract at the basis of the present dispute
contained a clear and specific jurisdiction clause.
58.
In this respect, the Chamber recalled that Clauses 33 and 34 of the employment
contract stipulate the following:
a. “In respect of any disputes that can occur between the parties in relation to
the present Contract, including in particular concerning validity, existence or
termination of the Contract, the proper Football Association of Country D
bodies will decide: acting in accordance with separate regulations. (clause 33);
b. All and any financial disputes resulting from this Contract will be subject to
decision by the Football Arbitration Court of the Football Association of
Country D (clause 34).
8.
In view of the above, the members of the DRC were of the unanimous opinion that
the employment contract did not make reference to one specific national dispute
resolution chamber in the sense of art. 22 lit. b) Of the aforementioned Regulations,
but, to the contrary, to two “justice institutions” of Country G. Therefore, the
members of the Chamber deemed that said clause can by no means be considered
as an exclusive arbitration clause in favour of the NDRC of Country D, as asserted
by the Respondent / Counter-Claimant.
Player A, Country B / Club C, Country D / Club Club E, Country B
12/18
9.
In addition, the deciding body highlighted that, under Article 47 §3 of the Statutes
of the Football Association of Country D, inter alia players are obliged to include in
the employment contract a competence clause in accordance with the exact
wording of Article 47 §4 of said Statutes, in order to guarantee the exclusive
competence of the NDRC of Country D. In a similar vein, the DRC recalled that, in
accordance with Article 47 §4 of the Statutes, the competence clause should include
the following: “Disputes which may result on the grounds of establishment,
existence, validity, execution and termination of agreements between members of
Football Association of Country D, players, coaches, instructors and players’ agents,
which may be subject to arbitration, arising in connection with (…) football, shall
be submitted by the parties for resolution to the [NDRC of Country D].”
10.
Thus, the Chamber established that the wording of Clause 33 of the employment
contract (cf. II.58.a) differs from the wording of Article 47 §4 of the Statutes of the
Football Association of Country D. Consequently, given the wording chosen by the
parties in Clause 33 of the contract, the DRC agreed that said clause does not
provide for the exclusive competence of the NDRC of Country D.
11.
Furthermore, the deciding body referred to Article 57 of the Statutes of the
Football Association of Country D (cf. I.26). In this sense, although the Chamber
found this provision not to have been drafted in a clear way, the DRC did concur
that it appears to indicate that for disputes with an international dimension, such
as the case at hand, FIFA is competent.
12.
Given all of the above, the Chamber established that the Respondent / CounterClaimant’s objection towards the competence of FIFA to deal with the present
matter has to be rejected, and that the Dispute Resolution Chamber is competent,
on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players,
to consider the present matter as to the substance and that the claim of the
Claimant / Counter-Respondent is admissible.
13.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as
the documentation contained in the file in relation to the substance of the matter.
However, the Chamber emphasised that in the following considerations it will refer
only to the facts, arguments and documentary evidence, which it considered
pertinent for the assessment of the matter at hand.
14.
In continuation, the Chamber first acknowledged that the Claimant / CounterRespondent and the Respondent / Counter-Claimant signed an employment
contract on 18 December 2015, valid as from 1 January 2016 until 30 June 2018.
Moreover, the deciding body recalled that the Respondent / Counter-Claimant was
registered with the Intervening Party on 25 August 2016 as a free agent.
Player A, Country B / Club C, Country D / Club Club E, Country B
13/18
15.
The Chamber further took note of the Claimant / Counter-Respondent’s
argumentation, who inter alia held that the contract had expired by virtue of
Clause 29. Similarly, the DRC acknowledged that the Respondent / CounterClaimant inter alia alleged in its counterclaim that the Claimant / CounterRespondent had terminated the contract without just cause, and that, as a
consequence, is liable to compensate the Respondent / Counter-Claimant.
16.
In this context, the Chamber unanimously agreed that the primary issue at stake is
determining whether Clause 29 of the employment contract is valid and binding.
By way of reminder, the DRC recalled that said Clause established the following:
“[i]n case of a drop to a lower class, the Parties undertake to renegotiate the terms
of this contract. If the parties fail to agree on the new contract provisions the legal
relationship between the parties expires”.
17.
After a careful evaluation, the deciding body felt that Clause 29, which is also
known as a relegation clause in accordance with DRC jurisprudence, left little
ambiguity: once the Respondent / Counter-Claimant is relegated, the Claimant /
Counter-Respondent and the Respondent / Counter-Claimant renegotiate the terms
of the contract. The Chamber further understood that, if no new agreement is
reached, the contract expires. In this context, the deciding body further interpreted
the relegation clause as signifying that both parties need to be willing to continue
the employment relationship. Thus, as per the DRC, the willingness of, e.g. only the
Respondent / Counter-Claimant would not be sufficient for the employment
relationship to continue.
18.
Furthermore, the DRC determined that the relegation clause is both reciprocal and
proportionate, i.e. it does not provide an advantage of one party over the other.
Furthermore, the Chamber referred to its previous jurisprudence, and recalled that
relegation clauses have been declared valid in previous decisions.
19.
The DRC then proceeded to analysing whether the relegation clause had actually
been invoked by one or both of the parties. In this sense, and in accordance with
publicly available information, the DRC established that the Respondent / CounterClaimant got relegated to a lower division at the end of the 2015/2016 football
season. Furthermore, the deciding body highlighted that the Respondent / CounterClaimant never submitted any evidence to the contrary.
20.
In addition, the Chamber took note of the evidence provided by the parties and
concluded that attempts were made to renegotiate the contract. In particular, the
DRC determined that it remained uncontested that the parties held a meeting on
4 July 2016 (cf. I.28 and I.48), while it is clear from the Claimant / Counter-
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Respondent’s submissions that he sent emails to the Respondent / Counter-Claimant
on 11 and 13 July 2016, inviting it to renegotiate the contract (cf. I.15 and I.16).
21.
The deciding body further took note from the evidence on file that no new
agreement was reached between the Claimant / Counter-Respondent and the
Respondent / Counter-Claimant. In this light, the Chamber placed particular
emphasis on the letter sent by the Claimant / Counter-Respondent to the
Respondent / Counter-Claimant on 18 July 2016 (cf. I.17) in which he wrote that he
treated “the contract as expired in the light of Clause 29”. Thus, the Chamber
concluded that the employment relationship between the Claimant / CounterRespondent and the Respondent / Counter-Claimant was finalised on 18 July 2016
by virtue of Clause 29 of the employment contract.
22.
With regard to the consequences of the finalisation of the contract by virtue of
Clause 29 of the contract, the DRC recalled that, in his claim, the Claimant / CounterRespondent requested EUR 5,250 as outstanding remuneration related to match
bonuses, an unspecified amount of compensation by the Respondent / CounterClaimant for breach of contract, a further EUR 300,000 as compensation for breach
of contract by the Respondent / Counter-Claimant in light of Clause 28 of the
contract or, in the alternative, EUR 500 as “compensatory damages, suffered by the
[Claimant / Counter-Respondent]” (cf. I.11). Similarly, the deciding body took note
of the Respondent / Counter-Claimant’s counterclaim, by which it requested EUR
108,000 as compensation for termination without just cause by the Claimant /
Counter-Respondent (cf. I.32).
23.
As regards the Claimant / Counter-Respondent’s request for outstanding
remuneration related to match bonuses, the DRC firstly referred to the employment
contract and recalled that the Claimant / Counter-Respondent was contractually
entitled to inter alia EUR 1,500 per won match in which the Claimant / CounterRespondent participated at least 45 minutes; EUR 500 per drawn match in which
the Claimant / Counter-Respondent participated at least 45 minutes; and EUR 250
per drawn match in which the Claimant / Counter-Respondent participated
between 15 and 45 minutes (cf. I.3).
24.
In continuation, the Chamber turned to the evidence provided by the Claimant /
Counter-Respondent, and noted that he had submitted internet extracts which
show that he had participated in seven games during the 2015/2016 season (cf. I.12).
Moreover, the internet extracts also indicate the amount of minutes the Claimant /
Counter-Respondent participated per game. In this regard, the deciding body was
eager to emphasize that the Respondent / Counter-Claimant never disputed the
Claimant / Counter-Respondent’s claim that he had participated in these seven
games. Taking into account the wording of the contract, the Chamber thus
Player A, Country B / Club C, Country D / Club Club E, Country B
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concluded that the Claimant / Counter-Respondent was entitled to EUR 5,250 as
match bonuses.
25.
On account of the aforementioned considerations, the DRC established that the
Respondent / Counter-Claimant failed to remit the Claimant / CounterRespondent’s pending remuneration in the total amount of EUR 5,250.
26.
Consequently, the DRC decided that, in accordance with the general legal principle
of pacta sunt servanda, the Respondent / Counter-Claimant is liable to pay to the
Claimant / Counter-Respondent outstanding remuneration in the total amount of
EUR 5,250.
27.
In addition, taking into consideration the Claimant / Counter-Respondent’s claim,
the Chamber decided to award the Claimant / Counter-Respondent interest at the
rate of 5% p.a. on the amount of EUR 5,250, as of the day of the contract
finalisation, i.e. 18 July 2016.
28.
Next, regarding the Claimant / Counter-Respondent’s request for an unspecified
amount of compensation by the Respondent / Counter-Claimant for breach of
contract, the Chamber firstly reiterated that the contract was terminated by virtue
of the relegation clause (cf. II.21). Moreover, even though the DRC acknowledged
that the Respondent / Counter-Claimant might have been in breach of the contract
up until 20 June 2016 for not paying the Claimant / Counter-Respondent his salary
(cf. I.45), the Chamber understood that this breach had been remedied by the
Respondent / Counter-Claimant once it paid the Claimant / Counter-Respondent the
amounts due to him (cf. I.46). Consequently, the deciding body concluded that no
compensation is due to the Claimant / Counter-Respondent for an alleged breach
of contract by the Respondent / Counter-Claimant.
29.
In continuation, the Chamber turned to the Claimant / Counter-Respondent’s claim
for EUR 300,000 as compensation in accordance with Clause 28 of the contract,
arguing that this is a “liquidated damages clause”. In this context, the DRC noted
that Clause 28 held the following: “Parties mutually agree “release clause” of [the
Claimant / Counter-Respondent] in amount of EUR 300,000 net until 31 December
2016 and EUR 250,000 net after 31 December 2016” (cf. I.5).
30.
After a careful analysis, the Chamber unanimously concluded that said clause was
not a liquidated damages clause, as the Claimant / Counter-Respondent argued, but
rather a release clause. In other words, as per the DRC, the clause established the
amount a party has to pay in order to unilaterally terminate the contract. In this
light, the deciding body referred to its previous deliberations, and determined that
since the contract was finalised by virtue of the relegation clause, the release clause
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does not apply. As a result, the Chamber established that the compensation in the
amount of EUR 300,000 is not due to the Claimant / Counter-Respondent.
31.
The DRC then referred to the Claimant / Counter-Respondent’s alternative claim of
EUR 500 in damages, which, as per the Claimant / Counter-Respondent, correspond
to the amount he would have earned at the Intervening Party in match bonuses,
had he been able to participate (cf. I.20). However, the Chamber was of the opinion
that this amount is not due to the Claimant / Counter-Respondent, because the
Respondent / Counter-Claimant cannot be held liable for any possible match
bonuses the Claimant / Counter-Respondent could have obtained at a new club,
such as the Intervening Party, regardless of whether or not he participates.
32.
With regard to the Respondent / Counter-Claimant’s counterclaim, by which it
requested EUR 108,000 as compensation for termination without just cause by the
Claimant / Counter-Respondent, the deciding body again referred to its previous
deliberations and recalled that the contract had expired by virtue of the relegation
clause (cf. II.21). On the basis of this, the Chamber also established that the Claimant
/ Counter-Respondent had not terminated the contract without just cause. Thus,
the DRC concluded that the Respondent / Counter-Claimant is not entitled to any
compensation by the Claimant / Counter-Respondent.
33.
Consequently, the Chamber decided to reject the Respondent / Counter-Claimant’s
counterclaim for payment of compensation in its entirety.
34.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant / CounterRespondent and the Respondent / Counter-Claimant are rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Player A, is admissible.
2.
The claim of the Claimant / Counter-Respondent is partially accepted.
3.
The Respondent / Counter-Claimant, Club C, has to pay to the Claimant / CounterRespondent, w ithin 30 day s as from the date of notification of this decision,
outstanding remuneration in the amount of EUR 5,250, plus 5% interest p.a. on the
said amount as from 18 July 2016 until the date of effective payment.
Player A, Country B / Club C, Country D / Club Club E, Country B
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4.
In the event that the amount due plus interest to the Claimant / CounterRespondent in accordance with the above-mentioned point 3. Is not paid by the
Respondent / Counter-Claimant within the stated time limit, the present matter
shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
5.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
6.
The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant immediately and directly of the account number to which the remittance
is to be made and to notify the Dispute Resolution Chamber of every payment
received.
7.
The counterclaim of the Respondent / Counter-Claimant is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS, a copy of
which we enclose hereto. Within another 10 days following the expiry of the time limit
for filing the statement of appeal, the appellant shall file a brief stating the facts and
legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
Player A, Country B / Club C, Country D / Club Club E, Country B
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For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D / Club Club E, Country B
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